Meadows & Meadows (No. 2)
[2019] FamCA 491
•30 July 2019
FAMILY COURT OF AUSTRALIA
| MEADOWS & MEADOWS (NO. 2) | [2019] FamCA 491 |
| FAMILY LAW – CHILDREN – contested residence – whether either parent presents as an unacceptable risk – although concerns exist around the mother’s failure to spend time with the child – orders made for child to live with the father and spend unsupervised time with the mother FAMILY LAW – PROPERTY – modest pool – dispute as to contributions – orders for 45%/55% division with similar superannuation splitting orders FAMILY LAW – SPOUSE MAINTENANCE – application by wife dismissed |
| Family Law Act 1975 (Cth), ss. 60B, 60CC, 72, 75, 79 |
| Meadows & Meadows [2017] FamCA 14 Meadows & Meadows [2017] FamCA 907 Meadows & Meadows [2019] FamCAFC 1 Hickey & Hickey (2003) FLC 93-143 Townsend & Townsend (1994) 18 Fam LR 505 |
| APPLICANT: | Ms Meadows |
| RESPONDENT: | Mr Meadows |
| FILE NUMBER: | PAC | 3509 | of | 2013 |
| DATE DELIVERED: | 30 July 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 14, 15, 16 and 17 January 2019 |
| WRITTEN SUBMISSIONS FINALISED: | 7 March 2019 |
REPRESENTATION
| THE APPLICANT APPEARED IN PERSON |
| THE RESPONDENT APPEARED IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr L Fermanis |
| INDEPENDENT CHILDREN’S LAWYER: | Mr P Wilkins Phillip A Wilkins & Associates |
Orders
Parenting
That all previous parenting orders be discharged.
That the father have sole parental responsibility for the child, B born … 2011 (“the child”) and in exercising his sole parental responsibility in relation to any major long-term decisions, before the father makes the decision, he shall:
(a)notify the mother in writing of his intended decision;
(b)allow the mother fourteen (14) days to provide to the father in writing her opinion of such intended decision;
(c)consider the mother’s opinion before making his final decision; and
(d)then advise the mother of his final decision.
That the child live with the father.
That the child shall spend time with the mother as may be agreed in writing between the parents, but at least as follows:
(a)Commencing from the date of these Orders, for a period of three (3) calendar months, each second Saturday from 10.00am until 2.00pm;
(b)For a period of three (3) calendar months thereafter, each second Saturday from 10.00am until 4.00pm;
(c)Thereafter, each second Saturday from 10.00am until 6.00pm; and
(d)On Mother’s Day from 10.00am until 6.00pm.
That to facilitate the time in Order 4 above, changeover shall occur at Suburb MM Children’s Contact Centre (“the Centre”) and the Centre’s costs shall be shared equally by the parents and paid on demand by the Centre.
That within seven (7) days of the date of these Orders, the parents are to make contact with the Centre and make arrangements with the Centre personnel to undertake all the Centre’s requirements to become eligible to be able to use the Centre.
That the father have leave to provide a copy of these parenting Orders to:
(a)any school upon which the child attends;
(b)any medical practitioner upon which the child attends; and
(c)the Centre.
That the child shall communicate with the mother by telephone as agreed between the parents but failing agreement on at least between the hours of 6.30pm and 7.30pm each Wednesday and each non-contact Saturday.
That the mother’s telephone conversations with the child, as provided for in Order 8 hereof shall be supervised by the father, or his nominee, for the next three (3) months only and are not to be lengthy. The father may terminate the call at the conclusion of fifteen (15) minutes of time or at any time he concludes the mother’s conversation with the child has become inappropriate.
That each parent be and is hereby restrained from:
(a)denigrating the other parent, the other parent’s household or extended family, or the child’s school, in the presence or hearing of the child, nor cause, permit or allow any third person to do so;
(b)providing or showing any documents filed in these proceedings (including the family report dated 3 April 2018) to the child, or permitting or causing others to do so; and
(c)discussing with the child these proceedings or permitting or causing others to do so.
That the mother and father shall keep each other advised at all times of their residential address and telephone contact numbers and details of all persons living at the house when the child is in their care and notify the other of any change within seven (7) days of such change.
That the father shall do all things necessary to authorise the child’s schools to provide to the mother on a regular basis copies of school reports, newsletters, and other information regarding the child’s school activities.
That the mother and father shall be at liberty to attend the child’s school for parent/teach interviews, school assemblies, school carnivals, extra-curricular activities and any other event parents are normally invited.
That the mother and father keep each other informed of any medical emergency that may involve the child or any medical treatment that the child may receive whilst the child is in the care of that parent.
That in the event of the child suffering a medical emergency requiring medical attention while spending time or living with either parent:
(a)the other parent is to be notified as soon as practicable;
(b)the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)the medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them on request.
That the father shall keep the mother informed and provide details and an authority to the child’s general practitioner and any other medical specialist including counsellor or psychologist the child may attend upon from time to time so that the mother shall be permitted to contact any medical practitioner/specialist/counsellor to discuss the child’s condition or treatment, if any, and these Orders shall be sufficient authority for each party to do so.
That any order restraining the removal or attempted removal of the child from the Commonwealth of Australia be discharged, and the child’s name be removed from the Airport Watch List.
That after 30 July 2020, provided these Orders have been complied with, the mother and the father should engage in a form of community-based family dispute resolution and genuinely discuss extending the time the child spends with the mother to include overnight time and part of school holidays as well as other special event time.
Property
That the husband shall pay the wife the sum of $200,000 (“the settlement sum”) within sixty (60) days of the date of this Oder and the husband shall retain as his exclusive property free of claims by the wife, the former matrimonial home at O Street, Suburb P (“the home”), with the husband indemnifying the wife from all claims, demands and actions arising from the home including the Bank PP mortgage.
That:
(a)the Court allocates, as required by s 90MT(4) of the Family Law Act 1975, a base amount of $45,000 to the Applicant wife, Ms Meadows out of the Respondent husband’s, Mr Meadows interest in the WW Superannuation Fund (“the Fund”);
(b)in accordance with s 90MT(1)(a) of the Family Law Act 1975, the Trustee of the Fund:
(i)creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in Order 20; and
(ii)makes a corresponding reduction in the entitlement to the husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.
(c)this Order has effect from the operative time and the operative time is four (4) business days after the date of service of a copy of the sealed Orders on the Trustee of the WW Superannuation Fund.
That the operation of Order 20 be stayed until such time as the husband files an Affidavit deposing to:
(a)service of a copy of these Orders on the trustee of the WW Superannuation Fund; and
(b)the response, if any, received from the Trustee.
That in the event that the Affidavit deposes that no response was received from the Trustee within twenty-eight (28) days of service of the Orders, or that the Trustee consents to the terms of the Orders, the stay imposed by Order 21 hereof is automatically discharged upon the filing of the Affidavit, without further order.
That unless otherwise dealt with in this Order:
(a)the wife shall retain as her sole and exclusive property free from claims by the husband:
(i)her jewellery;
(ii)her household contents;
(iii)her superannuation entitlements; and
(iv)any bank accounts and other personal property in her possession, power and control at the date of this Order.
(b)the husband shall retain as his sole and exclusive property free from claims by the wife:
(i)his motor bike;
(ii)his Vehicle 1;
(iii)his household contents, tools and trailer;
(iv)his remaining superannuation entitlements (after the splitting order at Order 20 takes effect);
(v)any bank accounts and other personal property in his possession, power and control at the date of this Order; and
(vi)his shareholding and other entitlements in L Pty Ltd (save for the Vehicle 3).
That the husband shall, within sixty (60) days of the date of this Order, sign all necessary documents as the sole director of L Pty Ltd to transfer and assign the company’s right, title and interest in the Vehicle 3 (formerly registered …) to the wife.
That if the husband is unable or unwilling to pay to the wife the settlement sum prescribed by Order 19 above, then:
(a)the home shall be sold by public auction and listed for that purpose by the husband, within ninety (90) days of the date of this Order, with a registered real estate agent agreed by the parties, and failing agreement as nominated by the President of the Real Estate Institute of New South Wales;
(b)the reserve price of the auction shall be no less than $620,000 unless agreed to by both parties but may be higher;
(c)the husband, for the purposes of the said auction, shall be required to accept an offer of $620,000 or higher;
(d)upon the settlement of any contract for sale of the home, the proceeds of sale shall be distributed as follows:
(i)payment of all real estate agent commission and marketing expenses;
(ii)payment of proper legal costs associated only to the husband’s sale of the home and proper adjustments on sale for rates and Government levies;
(iii)discharge of the secured Bank PP mortgage liability;
(iv)the balance (“nett sale proceeds”) to be distributed between the parties as set out in the next order.
That the nett proceeds of sale are to be distributed between the parties so as to achieve an overall division of the nett non-superannuation interests found to exist and identified at paragraph 83 of the Reasons for Judgment, in the proportions of 45% to the wife and 55% to the husband.
That pending the payment by the husband under Order 19 above, or the sale of the home under Order 25 above, the husband shall be entitled to remain in exclusive occupation of the home subject to him:
(a)continuing to pay the interest only payments on the Bank PP mortgage;
(b)continuing to pay rates, insurance and Government levies on the home as and when they fall due; and
(c)continuing to maintain the home.
That each party shall be responsible solely for any credit card liabilities, personal loans and other debts and liabilities not otherwise dealt with in these Orders, as may be in their name at the date of this Order and shall indemnify the other party from any claims in respect of such labilities, and without affecting the generality of this Order. The wife shall specifically be solely responsible for her HECS debt.
That the parties shall liberty to apply or any orders to enforce the provisions of this Order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: PAC 3509 of 2013
| Ms Meadows |
Applicant
And
| Mr Meadows |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, Ms Meadows and the Respondent, Mr Meadows separated in 2012, however the litigation between them which commenced in October 2014 has been complex and emotionally draining for both parents – concerning as it does both property proceedings and important future parenting arrangements for their seven year old daughter B.
The parties were unrepresented at the Final Hearing over four days in January 2019, and both filed written submissions.
The reasons which follow deal firstly with the competing parenting applications (where each parent seeks that B live with them), and secondly the financial dispute, both property settlement and spouse maintenance.
competing proposals
The Independent Children’s Lawyer, through his Counsel Mr Fermanis, articulated in final oral submissions delivered on 17 January 2019, the form of order sought by the ICL and it was marked Exhibit 41. The proposed order is marked Appendix One to these Reasons
As both parties were unrepresented, I was content for the ICL to make oral submissions and identify the reasons why the order the ICL proposed was in the best interests of the child. The orders speak for themselves but essentially provide for:
a)B to live with the father, who will have sole parental responsibility;
b)the child to spend unsupervised day time, graduating from four hours each second Saturday, increasing after six months for a further six months each alternate Saturday for six hours and then for each alternate Saturday from 10.00am until 6.00pm;
c)handovers are to occur at the Suburb MM Children’s Contact Centre;
d)telephone time shall occur on at least three occasions each week, supervised by the father who may terminate the call after 15 minutes;
e)apart from orders otherwise regulating the parents’ contact, the orders proposed by the ICL do not provide for B to spend any overnight time in the mother’s care or “special day” time, other than each Mother’s Day between 10.00am and 6.00pm;
Father
Although the father’s written submissions (filed 7 March 2019) followed the extensive written submissions of the mother, his proposals for final parenting orders were almost identical to the those contended for the by the ICL, save that the father proposes:
a)Unsupervised time should not commence (in the regime suggested by the ICL) until the mother “has attended the contact centre for a period of 6 months for supervised visits”. In view of the unwillingness to date of the mother to accept supervised time orders, the father’s order 3 is based on the mother agreeing “to supervised visits with the child”;
b)That for telephone time between the child and the mother, such time should decrease to “weekly telephone calls on Tuesdays between 4.30pm and 7.30pm once the mother begins seeing B on a regular basis at the Contact Centre”. The father proposes in addition, telephone time on Easter Sunday, the child’s birthday and Christmas Day take place.
Mother
As already noted, the mother’s written submissions cover some 70 pages of closely typed contentions, of which the first 45 pages (and 122 paragraphs) relate to parenting issues).
The parenting orders, comprising some 23 separate orders, are reproduced as Appendix Two and essentially provide for:
a)An immediate order for the child to live with the mother and for the mother to have sole parental responsibility; and
b)As set out at proposed order 4:
“4. That the Father’s time with the child be restrained and restricted to telephone time with the child ‘B’ until such time as the Father completes a Parenting Program and Rehabilitation program for alcohol abuse and/or any other such program or psychological assessment to address the Father’s:
(i)Antipathy towards the Mother;
(ii)his insight into the emotional and psychological harm of his conduct upon the child;
(iii)his capacity to provide a psychologically and emotionally safe environment for the child if she is to spend time with him;
(iv)His alcohol dependency
And that he shall provide evidence by way of notification to the court and the Mother that he the ‘Father’ has successfully attended and completed:
(i) An anger management course.”
and that subject to order 4, the time B will spend with the father will not include any school term time (other than for Father’s Day and the child’s birthday – see proposed orders 15 and 16) but take place during school holidays.
Although Appendix Two was the mother’s primary proposal, the alternate proposal of the mother, if the child was to live with the father, provided for:
a)equal shared parental responsibility; and
b)time between B and the mother to occur each alternate weekend (6.30pm Friday to Sunday 6.30pm); the whole of school holidays at the end of terms one (1), two (2) and three (3); “unrestricted and unmonitored telephone communications”; Mother’s Day and half of the Christmas school holidays.
As the proposals clearly identify, the father asserts that the mother presents as a risk to the child and the mother asserts that the father and his wife Ms F present as a risk to the child. As a result, the findings that I make in these Reasons about risk are critical to illuminating the pathway to my ultimate decision.
Statutory pathway
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
Contextual history
It is neither necessary nor in my view helpful, to pretend to suggest that every historical issue and dispute between these parents relating to B could be both identified and analysed in these Reason. The mother, although unrepresented, is highly intelligent, articulate and intensely engaged in this dispute as is readily apparent from her written submissions. No criticism of the mother in making this observation is intended – rather I make it so that the mother’s likely disappointment that I have not dealt with every issue raised by her (often repeatedly but with a slightly different nuance) is not to be construed as ignoring a comment made in her submissions. I have read the submissions more than once, and in isolating the “risk issue” as a significant issue for determination, the reasons which follow hopefully demonstrate to both the mother and the father that I have considered their quite different proposals within the matrix of the relevant primary and additional considerations prescribed by s 60CC(2) and s 60CC(3).
Statements of fact which follow should be construed as findings of fact.
The father was born in 1979 and is now 40 years old. The mother was born in 1981 and is now 38 years old.
The parents commenced cohabitation in 2001 and purchased a property at O Street, Suburb P (“the Suburb P property”) in 2006 around the time the parties were engaged. The mother says a period of separation occurred in 2006/2007 however the parties were married on 28 February 2009.
The subject child B was born in 2011.
Although the father and mother have different versions of history around the time that separation occurred initially in July 2012, by December 2012 the father had returned to live (and has remained living) in the Suburb P property whilst the mother and B lived in rental accommodation initially in a unit at Suburb EE. The father says the mother and B returned to the family home, and separation under the one roof commenced in early 2013 but this appears to be disputed by the mother.
Certainly, by the time the parties filed a joint Application for Divorce in 2013, the parties acknowledged that B was spending the majority of time in the mother’s care, when not otherwise at child care or with the father. The mother had returned to some employment in mid-2013. A decree of divorce was made in 2013.
The father and his now wife Ms F began their friendship in 2013, the mother saying she was unaware of the relationship for some time.
The mother claims she was stalked by the father and otherwise harassed by other persons and, as dealt with later in these Reasons, she came to the attention of the AAA Mental Health Team in May 2014. When discussing the father’s allegations that the mother has a concerning mental health history, I deal with this scheduled admission and the ongoing challenges in more detail.
The mother initially commenced property proceedings in the Federal Circuit Court of Australia on 16 October 2014, however parenting issues were not raised formally until the father’s amended Response was filed in May 2015 with the mother joining issue on parenting in July 2015.
Although the mother raises many concerns about orders made by both the Federal Circuit Court of Australia and Family Court of Australia, a recording of orders made and their effect sets the history accurately and less controversially, as follows:
a)On 30 July 2015, Judge Kemp made no interim orders, but ordered the parties and the child attend a Child Dispute Conference on 2 September 2015, which they did. At this time B was living primarily with the mother and, without any Court orders, the mother was facilitating time with the father on a regular unsupervised basis. A feature of the informal arrangements was the amount of travel the child (then aged nearly four years) had to navigate between the mother’s residence (with family) at E Town (near FFF Town) and the father’s residence at Suburb P;
b)With the Federal Circuit Court of Australia having appointed an Independent Children’s Lawyer (“ICL”), on 16 March 2016 Judge Kemp ordered, pursuant to s 62G(2) of the Family Law Act 1975 (“the Act”), the preparation of a family report. By consent, the property dispute was ordered to mediation;
c)From 12 August 2016 the mother unilaterally refused to permit, for the reasons she expressed, B to spend time with the father, causing the father to file an application for specific interim parenting orders on 7 September 2016 and interim orders were made on 4 October 2016; and
d)Interviews with the appointed report writer Psychologist Dr C, initially took place on 5 November 2016 and a further interview with the maternal grandmother and the father’s partner Ms F took place on 5 November 2016. The report of the expert dated 8 December 2016 became highly relevant during an interim hearing conducted before Judge Kemp on 20 December 2016.
Until this date, as noted, the parents had generally been able to facilitate time without Court orders. The father’s urgent application came before Judge Kemp on 4 October 2016, when his Honour made interim parenting orders as follows:
“…
2. Orders be made in accordance with the document titled ‘Minute of Order’ dated 4 October 2016 and initialled by me and placed with the papers, as follows:
a.That the child of the marriage B born in 2011 (“B”) live with the father as follows:
i.By consent, from Wednesday 5 October 201 at 6:30pm until Sunday 9 October 2016 at 9.00am.
ii.Each alternate weekend from 6.30pm Friday until 9.00am on Monday commencing on Friday 14 October 2016.
iii.On such other occasions as is agreed.
b.That B live with the mother at all other times, unless otherwise agreed.
c.That, within 7 days, the father sign all documents necessary to enroll B to attend KKK School at J Town commencing in 2017.
d.That, within 7 days, the mother sign all documents necessary to enroll B to attend HHH School at KK Town commencing in 2017, on a “no admissions” basis, with respect to that issue.
e.By consent, that the mother deliver B to the father at the beginning of each period B is to live with him and the father deliver B to the mother at the end of periods when B is living with him at the BP Service Station, JJ Street, K Town New South Wales.
3. The matter be adjourned to 9 November 2016 at 11.00am for interim hearing (estimate 2 hours).
4. Orders be made in accordance with the document titled “Minute of Directions” as initalled by me and placed with the papers, as follows:
a.That each party file and serve any further affidavit upon which they wish to rely at the interim hearing on 9 November 2016 on or before 28 October 2016.
b.Leave is granted to each party to issue up to 5 further subpoenas.
5. A short case outline document be forwarded by each party to my Associate at least 2 days prior to the adjourned date.
6. The Application in a Case filed 7 September 2016 be stood over to the adjourned date.
7. The date of 5 December 2016 at 9.30am be vacated.”
Time resumed on 5 October 2016 between the father and B and although the interim application was to be further heard on 5 December 2016, it seems apparent that the non-availability of the family report caused the interim hearing to be adjourned for hearing until 20 December 2016.
e)On 10 January 2017, for Reasons published (see Meadows & Meadows [2017] FamCA 14), his Honour made the following interim orders, namely:
“(1) B, born in 2011, (“the child”) live with the father.
(2) The child spend time with the mother, subject to these orders, from 6.30pm on Friday until 6.30pm on Sunday, each alternate week commencing the first Friday from the date of these orders.
(3) Notwithstanding, any other order, the child shall spend time with the mother from 6.30pm on the Saturday prior to Mother’s Day until 6.30pm on Sunday, being Mother’s Day if the child was not already in the care of the mother.
(4) Notwithstanding any order for the purpose of celebrating Christmas, the child shall spend time with the mother from 3.00pm on Christmas Eve, 24 December, until 3.00pm on Christmas Day, 25 December, in even numbered years commencing in 2016 and from 3.00pm on Christmas Day, 25 December until 10.00am on Boxing Day, 26 December, in odd numbered years commencing in 2017. The child spend time with the father from 3.00pm on Christmas Day, 25 December, until 6.00pm on Boxing Day, 26 December, in even numbered years commencing in 2016 and from 3.00pm on Christmas Eve, 24 December, until 3.00pm on Christmas Day, 25 December, in odd numbered years commencing in 2017.
(5) The mother’s overnight time with the child shall occur at the maternal grandparents’ home at D Street, E Town with one or both of the maternal grandparents being present, pending a psychiatric assessment of the mother being carried out as recommended by Dr C, with the costs of such an assessment to be shared equally, subject to any initial funding available from the Independent Children’s Lawyer. The Independent Children’s Lawyer has leave to forward to Chambers a minute of order to implement such an assessment.
(6) The mother have telephone time with the child as agreed between the parties but failing agreement on at least 3 occasions per week when the child is otherwise living with the father between the hours of 6.30pm and 7.30pm on Monday, Wednesday and Friday.
(7) All changeovers shall occur at McDonald’s, K Town, located on JJ Street, K Town, unless otherwise agreed to between the parties.
(8) Neither party denigrate the other in the presence or hearing of the child or permit any other person to do so.
(9) The parties do all acts and things to cause the child to be enrolled at and attend HHH Primary School at KK Town to commence kindergarten in January/February 2017.
(10) The matter be adjourned to 15 June 2017 at 9.30am for mention.”
The effect of these Orders was a change of residence of the child to the father, with the time the child was to spend with her mother (up until that time her primary carer), was reduced to unsupervised time each alternate weekend from 6.30pm Friday to 6.30pm Sunday.
The overnight time was to occur “at the maternal grandparents’ home at D Street, E Town with one or both of the maternal grandparents being present, pending a psychiatric assessment of the mother being carried out…” Against the mother’s strong contrary views, the child was to be enrolled in kindergarten at HHH School KK Town, a short drive from the father’s home.
Although this order was not specifically the subject of any appeal, it was an order which understandably significantly distressed the mother and has shaped most of the events and challenges over the last two years.
f)Almost immediately after the Judgment was delivered, the ICL at that time sought to engage the mother in arrangements for her to complete the psychiatric assessment referred to in the Order of Judge Kemp. The mother, during a Court event on 10 May 2017, tendered a report by a report by a Psychiatrist Dr EE dated 5 May 2017, which she asserted satisfied the earlier Order. The ICL and the father disagreed and this issue of the mother undertaking an independent psychiatrist assessment continued to present as an issue – one the mother understood, but as early as 4 July 2017, indicated she would not undertake such assessment. Judge Kemp transferred the matter to the Family Court of Australia on 14 July 2017;
g)I do not propose to recite every Application in a Case filed in the Family Court of Australia post transfer – save to observe there were a number all essentially seeking to revisit the Orders of Judge Kemp made 10 January 2017. Justice Le Poer Trench had the proceedings before him on 9 October 2017 and made orders on 10 October 2017 (see Reasons for Judgment Meadows & Meadows [2017] FamCA 907);
h)By the time of this application, the father had commenced cohabitation (in August 2017) with Ms F and B was living in that household (together with the six year old daughter of Ms F) which has proved to be an unsettling event for the mother. It has caused the mother to, at times, focus intently on Ms F and her history (by using subpoena) and through those investigations, the mother felt compelled to maintain a case at the Final Hearing that both Ms F and even her daughter G are a risk to B. Again, I explore these issues further in these Reasons;
i)The orders made by Justice Le Poer Trench on 11 October 2017 sought to expedite the Final Hearing and at Orders 4 to 8, orders were made relating to a psychiatric assessment of the mother if the mother agreed “to participate in a psychiatric assessment”. Simply stated, the mother has consistently refused to participate in any such assessment and at [52], his Honour urged the mother to reconsider her position not to participate. Justice Le Poer Trench was not satisfied there should be any “departure from the current interim orders” (at [23]); found that the mother did not make her case for interim spouse maintenance (at [32]); refused to make an injunction under s 68B (at [40]); refused an application that the husband meet the costs of the repairs to her car (at [46]) and refused to discharge the ICL and replace her;
j)For completeness, although I also refused a later application of the mother for the ICL to be removed, the ICL elected to withdraw, and Mr Wilkins was appointed by Legal Aid for the Hearing;
k)The mother continued to exercise her ordered time with B until an event on or about 5 November 2017, when the mother refused to return the child to the father because of a health concern. The father immediately caused a recovery application to be filed and on 10 November 2017 Justice Loughnan made a recovery order, which was executed that day with the child returned to the father;
l)The application (recovery order and consequential relief), were adjourned or otherwise listed before Justice Le Poer Trench on 14 November 2017 when his Honour ordered:
i)the child’s time with the mother under the orders of 10 January 2017 were suspended; and
ii)B was thereafter to have time with the mother at a supervised contact centre at V Town;
iii)The mother’s telephone time with the child to be supervised with a right to the father to terminate the call at the conclusion of 15 minutes.
Again, the mother’s position in refusing to participate in the preparation of an expert psychiatric report was noted at Order 9.
m)As a result of the Order made 11 October 2017, an updated family report (dated 3 April 2018), was prepared by Family Consultant Ms Z arising from interviews that were conducted on 25 January 2018. As Ms Z was the “final” court expert in this matter, and was the subject of cross-examination, her evidence in this case is dealt with separately below;
n)When the matter came before me, as a visiting Judge sitting in Sydney on 16 August 2018, and considering the order for expedition (and that the earlier trial dates in June 2018 had been vacated), the matter was listed for Final Hearing before me commencing 14 January. The matter proceeded, with the ICL providing oral submissions and a minute of final order, and the unrepresented mother and father directed to file written submissions. Some delay in their filing occurred but is of no consequence;
o)After the property and parenting proceedings were listed for trial, a pending Appeal filed by the mother against the orders made on 11 October 2017, was pending. It was heard by the Full Court (Ryan, Watts and Austin JJ) on 17 August 2018; dismissed with orders pronounced 21 December 2018 and Reasons published on 7 January 2019 (see Meadows & Meadows [2019] FamCAFC 1);
Despite the best endeavours at trial to focus the mother’s evidence, cross-examination and submissions not on the Reasons of Judge Kemp, or for that matter the subsequent Orders made by Justices of this Court, it was not achieved. These Reasons will not be drawn into seeking to satisfy the mother’s albeit understandable concerns from her perspective, that the change from her being the primary carer of B in January 2017, to the current position where she refuses to exercise even supervised time with B, is other than a complete travesty of justice.
Evidence of family consultant
It is important to record that the Court is not bound by or compelled to accept any evidence or recommendations of a Family Consultant. The expert does not determine disputed facts. However the expert, in this case Ms Z, has different skills and training that allows her in a different environment to observe parents; interview and observe children and form opinions based on those techniques. The evidence of Ms Z is independent and her opinions and considered and worthy of careful consideration by the Court.
Although the original Order of Judge Kemp was clearly influenced by the expert evidence of Dr C in her report, that evidence was based on her observations and understanding of facts at that time (over two years ago) and more importantly, has not been tested by the rigorous of cross-examination, as was the evidence of Ms Z. For these reasons I do not regard the opinions of Dr C as of more than historical value and further note that Ms Z does not appear to have relied on any opinions of Dr C and may not have even read the earlier report. Based on the report of the expert and her cross-examination, the following observations are of some importance in this matter:
a)The mother easily shared her concerns about the father and most of these issues were raised in the mother’s Affidavits. She recorded that she felt the father had made allegations about her mental health arising from her belief “she was being harassed at home, some items were stolen from the house… and she was also receiving prank calls” that were completely “blown out of proportion” and implied the father had instigated some of these activities “because he wanted her out of the house” and then the father used “the fact that she was scheduled to push the idea that she has mental health issues”. This description is consistent with the mother’s beliefs as set out in her Affidavit;
b)At paragraph 33, Ms Z recorded, accurately in my view, what the mother gave as the reason she had not been to the contact centre to spend time with B, namely:
“she believes that the reasons given for her to do so are based on false allegations” and that by going to the contact centre “she will be validating the alleged concerns about her mental health and that it would be like admitting that she is a ‘bad person’”
In other evidence the mother’s parents seem to support their daughter’s actions in not exercising time, and I agree with the opinion expressed by the expert at paragraph 99 that this stance is “incompatible with Ms Meadows’s professed concerns about B’s well-being”. I regard the mother’s inability to put aside her sense of “injustice” shows a lack of insight by the mother.
c)The father expressed concern about the mother’s failure to accept “she had a psychotic episode in 2014” and that he had no doubt was “quite paranoid before being scheduled by the mental health team in 2014”. The father believes Mr and Ms BB, the mother’s parents, did not support her outpatient care because “they did not believe she needed this support”. On all the evidence, I do not find, in 2014, that the father’s actions were motivated by trying to get the mother out of the house (she had already left) or to take this as an opportunity to exacerbate her mental health issues. I believe, at that time, he was concerned for the mother’s health and as she was (and remained for over another two years thereafter) the primary carer, this reveals his insight into B’s best interests at the time;
d)The father candidly conceded (at paragraph 44) that “it is difficult for B to spend no face to face time with Ms Meadows and said that B often says she misses her mother” and further is confused. He expressed the view, again consistent with his Affidavit and oral evidence, that he considers the mother’s behaviour “to be unpredictable and it is this aspect of her behaviour that is his main concern”, having already conceded that the mother “usually looks after B very well”;
e)Mr and Ms BB were interviewed by the expert and they felt their daughter “has been unjustly dealt with” and did not think that they should have to supervise the mother’s time with B, which causes tensions between them (paragraph 53);
f)The mother’s parents said the mother should not have withheld B in November 2017 and that it was a “silly” thing to do. However they were critical of the father to the expert, describing him as “an alcoholic” and having had DUI offences in 2007 and 2014. In his cross-examination, the maternal grandfather was similarly dismissive of the father describing him as a “typical tradie”;
g)The observations of B made by the expert were of a little girl (six years two months at the time), a “playful” child who likes sharing a room with G and she “likes seeing Mummy and would like to see her a little bit more” (paragraph 68). She expressed the reasons for not seeing her more often is that “she lives too far away” and because “Mummy kept me”;
h)The child seemed to be “very comfortable and happy” with her father and Ms F and was “affectionate” and “excited” to see her mother and maternal grandparents. At paragraph 81, the mother is recorded as telling B “that there are presents waiting for her (at the grandparents’ home) when she is back with her mother”. I return to this issue later in these Reasons;
i)Ms Z opined that at the time of her observations (which was less than six months after the mother elected not to spend supervised time with B) the child presented as “a resilient, articulate child who is making progress academically and socially”. I accept this assessment and in my view the evidence at the Final Hearing (including her recent school report marked Exhibit 4) confirmed her continuing positive development;
j)Ms Z expressed it is most “unfortunate, and very sad for B, that she is currently not having face-to-face time with her mother or maternal family” and that “the lack of opportunities for B” to spend time with the mother “is likely to have a detrimental impact on the relationship between B and her mother”. I entirely agree with this opinion. It only increases my level of concern about the mother’s insight and capacity to put her daughter’s best interests first, that reading such strong and clear opinions did not persuade the mother to change her stance. Rather, the mother only had one solution – that being the child should live with her;
k)The expert, sensibly, chose not to comment on the mother’s psychiatric status but found some of the parenting issues raised by the mother as “a bit obsessive” and consistent with the “fairly high expectations” for B. Paragraph 99 of the report, which I accept, reveals what I have already identified as a lack of insight by the mother as to the negative ramifications for B arising from her behaviour;
l)The recommendations were ultimately shaped by the opinion that “it is difficult to be confident about B’s emotional safety if she spends unsupervised time with Ms Meadows” and that it would be “very helpful if Ms Meadows was able to spend supervised time with B for a period of 6 months” so that an evaluation of the mother’s attitude to parenting arrangements can be evaluated (paragraph 100). In cross-examination, Ms Z admitted the six months supervision was arbitrary, but she could not support overnight time at the moment - having been informed that (sadly) despite her report, the mother still was not prepared to spend supervised time with B;
m)In cross-examination by the mother, Ms Z inter alia said:
i)she did not assess B as fearful of the father;
ii)she did not regard the mother’s actions in withholding B in November 2017 as “reasonable” but more impulsive and lacking consideration of the effect on B. She confirmed the mother’s counsellor Ms FF did not seem concerned;
iii)she did not see the childcare issues as problematic; and
iv)based on the evidence available concerning Ms F, they are historical issues and do not present as a risk factor now.
Overall, and seen in the context of the whole of the evidence heard by me, I do give weight to many of the opinions expressed by Ms Z. I share the concerns she expressed about the mother, although I do not accept that the withholding in November 2017 should have been so pivotal, as it became.
The mother’s action in not spending time since November 2017 looms not only as a major concern about the mother’s insight, but also has meant the child has adjusted to living happily in the family unit created by her father and supported by the school she attends. It weighs heavily in favour of the child continuing to reside with the father, unless it can be established that the father (as the mother asserts) and/or his wife Ms F is a risk to B.
Risk factors in the father’s household
Although Ms Z raises no current concerns about father’s the capacity to meet the physical and emotional needs of the B, the mother persists in identifying what she regards as many serious risks. I make findings about these issues, on all the evidence, as follows:
a)Alcohol use: it needs to be remembered that the parties have not been an “intact” couple for nearly five years. As the relationship was deteriorating, I find it was likely the father did at times excessively use alcohol. The conviction of a drink driving offence in 2007 (when the father was 28 years of age) is confirmation. However, the mother has failed to establish that the father’s evidence that he limits alcohol usually to two Corona beers a night, is false. I accept his evidence. She alleged the father had a DUI in 2014 – but it is apparent she did not properly read the Police records; the father indicating he was a witness to a car accident in 2014 and not charged with any offence. The mother’s parents, who admitted they have not seen the father for four years, made statements unsupported by the evidence and denigrated the father (e.g. “typical tradie”), but in any event, there is no collateral evidence that supports the mother’s assertion the father is an “alcoholic”. The fathers wife Ms F, whose evidence and candour were both impressive and in my assessment believable, raises no concerns about the father’s current alcohol use;
b)Violence: there is no evidence that supports a finding that the father has an angry disposition, save for the reactions by text at times to the mother’s constant agitation – particularly after the change of residence. The father was similarly frustrated by the delays in the matter. Certainly, at every opportunity, the mother both in her numerous Applications in a Case and supporting Affidavits, criticised the father’s parenting and his decisions – particularly his choice of school; the child’s extra-curricular activities and his attendance for medical treatment arising from sunburn, molluscum, an injury to the child’s eye and other events. The mother asserts that the father was controlling during the relationship and his actions in these proceedings are a form of financial abuse of her. In my view, I do not assess the father as a violent person likely to be at risk to B;
c)Stalking: the father is accused of “stalking” the mother. The mother raised her concerns with Police. The Police, the mother says, did not properly investigate her concerns about the father. She has made complaints to higher authorities about the conduct of police. The father denies any stalking. I accept the father’s denials. Within the same area of conduct, the mother made an allegation that Ms F travelled over two hours to J Town to harass the mother “chasing her into a room”. This interaction is said to have occurred at the Museum and at a public swimming pool. [Ms F] denies any such behaviour – swearing that she has not even been to J Town since she was a child. I am not satisfied that what the mother alleges occurred at all. Whilst it is possible the mother had an incident as she asserts, it was not Ms F. The mother’s evidence in this regard is concerning;
d)Parenting style: the concerns the mother raises about the child “bathing” with G; sharing a room with G; support of her schooling at a school not the mother’s choice and similar, do not amount to “medical neglect” as the mother asserted but are parenting decisions within the range of normal parental conduct. An allegation by the mother that the child was given “lemon cordial” to induce vomiting was a further example of the mother’s desperate accusations;
e)Ms F: the mother’s attacks on the father’s wife, in my view, demonstrated the capacity of the mother to focus intensely on issues of history without applying a sensible filter as to whether or not Ms F presents as a risk to B. Certainly, the mother makes it clear that she believes the father’s relationship with Ms F was more intimate than mere friendship for much longer than the father is prepared to admit. The Court can well understand the reluctance of the father and Ms F to fully disclose the nature of their relationship to the mother – fearful of her reaction. The mother’s behaviour, use of subpoena and submissions demonstrate their concerns were well founded. The mother’s attempt to point to Ms F’s history as a victim of serious family violence by her former partner Mr QQ (the father of G) and seeking to blame Ms F in some way and asserting she puts both G and B at risk, was without evidentiary foundation and, frankly, did the mother little credit. I accept without reservation the evidence of Ms F about how she appropriately dealt with those issues to protect G; that B has not had contact with Mr QQ; that there are now no current Apprehended Violence Orders in existence; that G sees her father by mutual agreement and that communication between her and Mr QQ has improved.
I also accept the evidence of Ms F that the father in this case has supported her and tried to protect her (physically and emotionally).
Perhaps even more concerning was the attack, for that is what it was, on Ms F by the mother arising from Ms F’s treatment for an eating disorder when she was a teenager – including some “self-harm” issues at that time. Ms Z did not regard those issues as a concern now. The mother, trying to connect those issues with the food choices that B now has in the father’s household (e.g. reduction of sugar), was a total disconnect. The mother was simply grasping at straws. Ms F offered herself for cross-examination by the mother. Ms F acknowledged she has suffered anxiety for most of her adult life; is appropriately medicated and has medical support. Although she had a “relapse” in her anxiety when G was born in 2011, she had the insight to obtain treatment. No such difficulties occurred when the baby LL was born in 2018.
As I will now discuss, the insight and preparedness to accept her vulnerability at times demonstrated by Ms F is in sharp distinction to the mother’s beliefs as to her own mental health challenges at times. I also note, that the mother’s opening comments in her message to the father of 17 November 2018 (Exhibit 18) were both without foundation and bizarre, to be followed and still maintained by her up until the end of trial (see Exhibit 5 dated 7 January 2019).
Risks to B in the mother’s care
During the parties’ relationship and for most of the post separation period to the end of 2016, on balance the evidence did not reveal the child’s care was being compromised by the mother on a day-to-day basis. Certainly the mother held concerns about the father but it really was not until the Orders made 10 January 2017 for a change of residence, that aspects of the mother’s behaviour erupted in ways which have lead the Court ordering on an interim basis to ultimately restrict the mother’s time to supervised time and regular telephone time with B.
The difficulty that confronts the Court in this matter, where the mother has refused to undertake (as she is entitled to do) an independent psychiatric analysis, is putting the events of May 2014 and behaviour of the mother into a context that allows the Court to assess with more certainty the mother’s future functioning if her time with the child is unsupervised. A psychiatric analysis may have been helpful to the Court and the mother’s case. We will never know.
The Court does not make any adverse inference concerning the mother about the likelihood of the opinions in any independent assessment. What the Court does find is that, as far as the mother is concerned, there are no current issues about her functioning which should concern the Court and therefore no need to obtain an independent psychiatric analysis can be demonstrated.
Placed under these evidentiary limitations, the findings I make about the mother’s current mental health are:
Admission in May 2014
a)In February 2014, the mother’s General Practitioner Dr ZZ referred the mother to the local “AAA Mental Health Access Team” for assessment. Mr YY (Psychologist) and Registered Nurse Ms XX saw the mother briefly on or about 12 February 2014. Their report to Dr ZZ says:
“There were no obvious signs of psychosis and she denied delusional thoughts. She acknowledged that she believed that people have been hacking into her accounts. She said that she has been depressed but that she is dealing with it. Her ex-husband was also present and he said that Ms Meadows was unwell last week but that she is much better now. He also stated that he had no concerns for her at the moment.”
In my view this demonstrates a genuine and supportive concern of the father and the mother declined further contact at that time with the local health authorities.
b)Sadly, by 23 May 214, Mr YY had formed a different view of the mother’s mental health, certifying the mother to be “mentally ill” at that time (Exhibit 8) which was confirmed by a medical practitioner (Exhibit 9) as a result of her expressed and defined “persecutory beliefs”. She was scheduled, being an involuntary admission for her safety, and kept in care for four days. Although the mother asserts Mr YY “fabricated” his evidence in the documents, I reject that claim by the mother. The mother did not call Mr YY to give evidence in the trial;
c)Reflective again of the father’s support at the time is the mother’s nomination of the father (along with the maternal grandfather) as a primary carer under s 71 of the Mental Health Act 2007 (NSW);
d)Although I do not have the mother’s full discharge summary from the hospital, Exhibit 11, a difficult to decipher handwritten note on 27 May 2014, suggests the mother was compliant with treatment and supported at discharge by the father;
e)After her discharge it appears that the mother’s General Practitioner Dr ZZ referred the mother under a mental health plan “for assessment and treatment” to Clinical Psychologist Dr BBB, who provided a brief report to the General Practitioner dated 24 June 2014 (Exhibit 14) confirming that the mother attended once on 10 June 2014 and that the Psychologist planned to commence treatment with her the following week, but that the mother did not attend the second appointment on 17 June 2014 and had not contacted the Psychologist since. This failure to attend was put to the mother, who said she moved to E Town after the first appointment and did not engage with another health professional at that time.
This evidence is sufficient to satisfy me that in May 2014 the mother was in fact mentally unwell; that she was expressing paranoid and delusional thoughts (even if, as her father deposes, some aspects had a truthful foundation), but that there is little evidence after May 2014 and for a period of approximately two years, that the mother came to the attention of authorities or sought treatment.
Other medical consultations since May 2014
The mother filed and relied upon the medical reports referred to below, however none of the witnesses were available for cross-examination and their notes of consultations with the mother were not produced (at least likely to be a result of the late appointment of a different ICL). I ruled that the mother could rely upon those Affidavits, but that an inability to test their opinions did affect the weight I might be able to attach to the evidence. The reports are:
Dr EE (Psychologist)
a)The report dated 5 May 2017 makes it clear Dr EE was asked to review documents provided by the mother (not detailed) and importantly Dr EE says that the mother told him the documents were used to unfairly “disadvantage” the mother in the Family Law proceedings. Considering the limited retainer, Dr EE was careful to record in the report that:
“…you are not a patient under my care, nor have I interviewed you for the purpose of writing a clinical report…”
There is nothing to suggest Dr EE was provided a copy of the family report prepared by Dr C that was, at that time, available.
b)Dr EE records accurately parts of documents handed to him as quoted and offered opinions on this limited material, noting that between May 2014 and March 2017 the only information likely to be available to Dr EE of the mother’s functioning came from the mother’s brief consultation on 29 March 2019;
c)He opined that if the mother’s symptoms seemed to “greatly lessen within just a few days of admission” that this “strongly suggests…[the] symptoms were not manifestations of a primary psychotic illness” and further and importantly that:
“16. As a general point it should be noted that neither psychiatric illness nor abnormalities of personality functioning preclude effective functioning in a parental role per se. Such abilities or deficiencies are best assessed by collateral reports and observations and should be made independently of psychiatric diagnoses.”
Dr LLL
d)Dr LLL was a member of the MMM Street Medical Centre and attached to his Affidavit were “reports” and referrals being:
i)Report “To whom it may concern” dated 10 October 2017 about a consultation with Dr DDD on 7 October 2017;
ii)Referral dated 7 July 2017 to Paediatrician Dr CCC at J Town Hospital about the mother’s concern that B “is developing an anxiety disorder”
iii)Report “To whom it may concern” dated 14 March 2017 in respect of four consultations concluding with an opinion that “from my experience and looking at the notes and circumstances of these health issues it appears that she is appropriate with her parenting instincts and decision making”;
iv)Report “To whom it may concern” dated 9 April 2018, which gives a general summary of visits with an opinion expressed that “there is no indication that she is unable to parent her child”.
e)Although not attached to this Affidavit, Exhibit 13 is a letter from the same medical practice dated 2 November 2017 (just prior to the mother’s decision to withhold the child), that:
“Further to Dr LLL’s letter dated 10/10 I did consult B and her mother for molluscum contagiosum and in that consultation I was shown Iphone pictures of a previous injury near her left eye which was probably traumatic in origin from another child which she indicated was the cause”.
It is not clear whether the she referred to was B or the mother. Also, it is unclear whether Dr CCC made any diagnosis of B.
Dr GG
f)Dr GG appears to be a General Practitioner in FFF Town who the mother consulted 10 times between 9 January 2016 and 18 December 2017 about “her stress in relation to custody of her daughter and that she was psychological (sic) fit to care for her daughter”. The report dated 3 April 2018 indicated that the Doctor “found no evidence of psychiatric illness during these consultations”. There is no indication in the report that Dr GG had access to collateral material, including the material offered to Dr EE;
g)Other reports attached to the Affidavit dated 18 December 2017 seem likely to have been obtained by the mother after one of the significant Court events in January 2017 (changing residence) or November 2017 (imposing supervised time), and although they reveal no psychiatric concerns, it is difficult to attribute weight to such statements as one might to a proper psychiatric diagnosis – which the Court does not have.
Psychologist Ms FF
The Affidavit of Ms FF filed 21 February 2018 contained a report (paragraph 11 was struck out for oral reasons given by the Court), about consultations with the parents in January/February 2014. Subsequently, email communication with the mother in November 2016, April 2017 and December 2017 took place. Furthermore, a lengthy telephone conversation between the mother and Ms FF took place on 20 January 2018. In the report, Ms FF opines that “in my assessment Ms Meadows is a safe parent, capable and willing to provide consistent and interested parenting”, yet it seems that Ms FF had not personally seen the mother since 2014; had never seen B and had no access to collateral information from May 2014 or the family report of Dr C.
This report was supplemented by:
a)Exhibit 12 being an email dated 29 June 2018. It is unclear what prompted this email, yet I infer it was contact by the mother, expressing some concerns about a recent telephone call between the mother and B. The statement of concern is of little assistance, but hardly surprising;
b)Exhibit 26, being an email dated 3 April 2017, in which Ms FF says to the mother:
“I am totally supportive of your daughter being in your care. I always was. However I understand you have refused my conditions and you are comfortable doing that.”
This letter is relied upon by the father to demonstrate the mother’s failure to accept medical advice. The letter, without notes or other emails of Ms FF explaining her “conditions” is of little probative value.
c)Ms Z in her report at paragraphs 59 to 61, gives details of a telephone conversation she initiated with Ms FF. Ms FF apparently expressed:
i)it was unreasonable that so much attention has been focused on Ms Meadows’s mental health, but that no one is looking at Mr Meadows’s “deficiencies”. This, on all the evidence, is simply not true; and
ii)an awareness that the mother kept B against Court Orders “and that she does not think that was a terrible thing to do and that she can understand why Ms Meadows did that.”
Conclusion on mental health
On all the evidence I find that:
a)the mother in May 2014 had a serious mental health issue that had begun at least from February 2014;
b)the mother did not take up suitable treatment after that event;
c)although the father was having regular contact with B and reasonable communication with the mother, the father did not intervene in seeking to disrupt the mother’s primary care of B with the mother, until after the Dr C’s report;
d)by this time, I accept there were some examples of the mother’s erratic behaviour and capacity to feel she was being stalked and harassed by persons unknown (see for example her complaint to Police on 16 August 2016 – Exhibit 7);
e)the mother’s unfounded negative comments against Ms F and her constant criticisms of the father’s parenting were becoming intense and she was by late 2016 losing child focus;
f)confronted with the need to resolve the pre-schooling arrangements for B for the 2017 school year, the decision of Judge Kemp reasoned the child should go to a local Catholic school and live primarily with the father;
g)this significant change did significantly distress the mother and she felt it necessary to prove she was a fit mother. Although Judge Kemp made a decision for B to live with the father, he ordered the mother to have unsupervised time on a regular basis including some special days, although evenings were to be spent at the home of the maternal grandparents in their presence;
h)Although, by this time, the mother’s intent to disprove the concerns of Dr C and to prove the deficiencies in the father and Ms F intensified, the time arrangements were generally complied with by both parents;
i)The mother’s decision to withhold the child in November 2017, although the evidence above reveals she sought some medical advice at the time, was not as wilful a non-compliance with the order as the father asserts. It was a “silly” thing to do as the maternal grandmother said. The father was perfectly entitled, at law, to seek a recovery order;
j)However the consequences of the recovery order, but particularly the order for the mother’s time to be supervised, have been very significant as the history reveals. It has, I find, exacerbated any of the mother’s underlying personality traits to such a level that she presents as a litigant unable to consider reasonable alternatives so far as B is concerned. Her failure to spend even supervised time is regrettable;
k)The Orders of Justice Le Poer Trench to expedite the hearing should have resulted in a trial within a few months, not 13 months later. Those delays have only fuelled this fire and the mother’s sense of injustice.
That for the purposes of celebrating Mother’s Day, the Mother shall spend time with B for the weekend of Mother’s Day commencing from the termination of the school day on the Friday of that weekend in which the Mother shall collect B from the school until the following Monday of that weekend in which the Mother shall take B to school for the commencement of the school day.
That the Mother inform the Father of the school and school location in which B is enrolled as soon as practicable after enrolment of B at the school.
That subject to Order 4; the Father be permitted to attend the major events of the child at the school, parent/teacher interviews and school carnivals and obtain academic transcript records of B from the school.
That the Father be restricted and restrained from accessing any personal details or communications to and from the school in which B attends in relation to or from the Mother Ms Meadows.
That subject to Order 4; that each of the parties is restricted and restrained from delegating the responsibilities to third parties including any spouse/s or grandparent/s for the making of medical appointments for B with the exception of emergency situations.
That subject to Order 4; that each of the parents when the child B is in the care of the other parent inform each other of any medical and/or other emergency situation involving the child as soon as is practicable or in any such event within 1 hour of the emergency event involving the child.
That the Mothers Medical/Health records be returned to the safekeeping of the Family Court of Australia Sydney Registry and/or the Mother be notified of the confidential destruction of any medical or health records of Ms Meadows held in the possession of her former Solicitors and the previous Independent Children’s Lawyers.
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